First Amendment: Freedom of Speech (Content-Neutral Regulation)

Chapter 12

First Amendment: Freedom of Speech (Content-Neutral Regulation)

The concept of content neutrality, during the final decades of the twentieth century, has evolved as a particularly significant limiting principle. Insofar as a regulation is understood to regulate a concern unrelated to or secondary to speech, standards of review are more relaxed than they would be if content itself was regulated. The earliest content neutrality cases arose in the context of accounting for interests such as traffic flow and competing uses in public forums. In the late 1960s, as evidenced in United States v. O’Brien (discussed in the subsection on symbolic speech), content neutrality principles expanded beyond the public forum context. The content neutrality concept represents a particularly profound development insofar as it increases space and opportunity for regulation and diminishes the range of constitutional concern.


The quality of expressive freedom turns in significant part upon opportunity to access a place to speak, communicate, or interact. Consistent with this premise, Justice Owen Roberts in Hague v. C.I.O. (1939) observed that “streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient time, been a part of the privileges, immunities, rights, and liberties of citizens.” Justice Roberts’s characterization of the availability of streets and parks for expressive purposes exaggerated the First Amendment tradition associated with them. Less than half a century earlier, the Court in Davis v. Massachusetts (1897) rejected the premise that parks or highways “from time immemorial” had been open to speech. It thus found government denial of public access to be no different than a decision by a private property owner.

Although the “time immemorial” understanding may be overstated, it nonetheless has shaped modern understanding of public forums. Two primary First Amendment interests arise in the public forum context. The first is whether a forum actually is accessible to the public. The second concerns the extent to which government may regulate it. With respect to the first issue, access depends upon how the forum is characterized. On the second matter, the constitutionality of regulation hinges upon whether it is content-based or content-neutral. If government aims to control content, its reasons and means will be strictly scrutinized. A diminished standard of review may operate if the speech is perceived as having a low value. Content-neutral regulation typically manifests itself in the form of time, place, or manner restrictions. Typical concerns in this context include management of competing uses, protection of property, maintaining traffic flow, and public safety.

Public forum doctrine has become an increasingly significant and complex aspect of First Amendment jurisprudence. The Court, in Perry Education Association v. Perry Local Educators’ Association (1983), identified different types of public forums and set forth the basic rules governing each of them. In Rosenberger v. University of Virginia (1995), the Court demonstrated the elastic and sometimes abstract nature of a public forum.

Perry Education Association v. Perry Local Educators’ Association

Citation: 460 U.S. 37.

Issue: Whether an interschool mail system and teacher mailboxes were public forums and thus accessible to parties other than those provided for by a collective bargaining agreement.

Year of Decision: 1983.

Outcome: The mail system and mailboxes were not public forums, so the collective bargaining agreement limiting access to them did not violate the First Amendment.

Author of Opinion: Justice Byron White.

Vote: 5-4.

Freedom of speech standards of review are at their peak when government attempts to regulate on the basis of content. Even when regulation is not directed at content, it may have an impact on speech. Under such circumstances, First Amendment interests may abate but they do not disappear. A classic example of this phenomenon arose in United States v. O’Brien (1968) when the Court upheld the conviction of an antiwar protester who burned his draft card. Although the demonstrator’s symbolic expression became the basis for the prosecution, the Court found that the government was acting primarily upon the content-neutral concern of ensuring the operational efficiency of the selective service system.

Regulation is content-neutral, even if it affects speech, when the law accounts for an interest unrelated to expression. Content neutrality is evidenced, for instance, in symbolic speech regulation that targets conduct rather than expression. It also is manifested when the law attempts to manage those effects of speech that are secondary rather than primary. An example of secondary affects regulation arises when, as in Young v. American Mini Theatres Inc. (1976), a city zoning ordinance restricted the location of adult movie theatres pursuant to an interest in neighborhood quality. The richest source of content-neutral regulation, however, pertains to governance of public forums on the basis of time, place, or manner.

In public forum cases, the threshold issue is one of definition. Private property implicates no state action and thus is beyond the scope of First Amendment concern. Public property may be available for expressive purposes, however, depending upon its use. Certain types of forums must be accessible. In any event, legitimate public forum management must account for interests unrelated to speech content. Typical concerns include protection of property, scheduling competing uses, efficient traffic flow, and public safety. These types of interests provide the basis not for regulation of content but of the time, place, and manner of expression.

Public forum doctrine was introduced in the late 1930s, when the Supreme Court in Hague v. CIO (1938) determined that streets and parks “immemorially have been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” The characterization of streets and parks as forums that “immemorially” have been reserved for speech may have overstated reality. Four decades previously, in Davis v. Massachusetts (1897), the Court specifically had rejected the premise that “from time immemorial,” parks had been accessible for public speaking. Notwithstanding the historical glitch, the Hague decision recognized what modern case law refers to as the traditional public forum.

The civil rights era was a time of significant growth for public forum doctrine. Official efforts to deter protests in public places during the 1960s affirmed the freedom to speak and assemble on state capitol grounds, Edwards v. South Carolina (1963), and on public sidewalks, Cox v. Louisiana (1965). Decisions like these accounted effectively for speech interests in traditional public forums. In Brown v. Louisiana (1966), however, the Court reversed breach of peace convictions of persons who protested silently in a public library. The Court in the same term, in Adderley v. Florida (1966), upheld the trespass convictions of demonstrators who protested on jailhouse grounds. These cases indicated uncertainty with respect to the boundaries of traditional public forums. Insofar as a forum’s compatibility with speech may be a legitimate state concern, a library might be viewed as an inappropriate venue for any activity (including speech) that is a distraction. The grounds of a jailhouse like those of “an executive mansion, a legislative chamber, a courthouse, or the statehouse,” as Justice William Douglas noted, is a “seat[ ] of government.”

Given the need for better definition and clarity, the Court eventually responded with a framework that categorizes public forums and establishes constitutional rules for their governance. This evolution took place in Perry Educational Association v. Perry Local Educators’ Association (1983). The Perry case concerned a rival union’s claim that it was entitled to access public school teacher mailboxes. Under a collective bargaining agreement, access was provided exclusively to the union that had been elected to represent the teachers. Access also was permitted for community, civic, and religious groups. Selective access to a public forum entails the risk of abridging not only freedom of speech but equal protection. As the Court concluded in Police Department of Chicago v. Mosley (1972), “[o]nce a forum is opened to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.”

The Mosley decision responded to a municipal ordinance that prohibited all picketing near schools except during specified hours and in the context of labor disputes. This regulation, although styled as a time, place, and manner regulation, manifestly discriminated on the basis of content. Minus a compelling reason for differentiating one type of picketing from another, the ordinance was contrary to the First Amendment. Despite arguments that the public schools likewise discriminated on the basis of content, when access to its internal mail system was provided on a selective basis, the Court refused to equate teacher mailboxes with public sidewalks. Finding that teacher mailboxes were not public forums, it concluded that the school system could limit access to organizations engaged in official school business.

The long-term value of the Perry decision owes less to its specific result, which critics have questioned, than to its effort to establish an orderly framework for public forum analysis. Toward this end, the Court established three forum categories and the constitutional rules that govern each. The first model is the “quintessential” public forum consisting of those “places which by long tradition or by government fiat have been devoted to assembly and debate.” Primary examples of the traditional public forum are parks, streets, and sidewalks. Content-based regulation in this context must be supported by a compelling state interest and must be narrowly drawn in accounting for it.

The second category is the designated public forum. Such a venue is one that government has opened “for use by the public as a place for expressive activity.” The designated public forum may consist of a public school auditorium, fairground, or any other property that government has opened to expressive activity. The basis for differentiating it from a traditional forum is that government has no obligation to open it to speech activity and reserves the right to close it. So long as the state opens the forum, however, content-based regulation is subject to the same strict review associated with traditional forums. To the extent that government closes the forum, it must do so on a wholesale rather than selective basis.

The third category is the nonpublic forum, “which is not by tradition or designation for public communication.” In this context, government is not bound by prohibitions against content-based regulation or restrictive access. The standard of review for such regulation is not strict scrutiny but whether it is reasonable. For each type of forum, however, government is precluded from conditioning access or punishing expression on the basis of disagreement with the speaker’s opinion. This rule against viewpoint discrimination would deny government the ability to control access on the basis of political philosophy or position.

Time, place, and manner regulation, even in the context of a traditional or designated public forum, is subject to a lesser standard of review than for content-based regulation. The general rule is that such content-neutral regulation is consistent with the First Amendment, provided it promotes a substantial government interest and provides speakers an adequate alternative means for communicating their message. Common models of time, place, and manner controls include park and parade permits, limitations on door-to-door solicitation, and restrictions on sidewalk or street use. Since Perry, the Court has upheld time controls on the broadcast of indecent programming, place limitations that prohibit picketing in front of a home, and manner restrictions that regulate the volume of amplified music in a public park.

Despite the Court’s framing of a more orderly structure for public forum analysis, loose ends and concerns remain. As times and conventions evolve, it is not always easy to determine the boundaries of tradition. Not surprisingly, therefore, the Court, in International Society for Krishna Consciousness, Inc. v. Lee (1992), fragmented over whether an airport terminal was a traditional public forum. Since Perry, moreover, the Court has reduced analysis of public forum regulation primarily to the question of whether government has a rule because of disagreement with a particular message. So long as government can demonstrate that its objective is unrelated to the content of expression, as the Court observed in Ward v. Rock Against Racism (1989), its officially stated purpose “is controlling.” Given this relaxed standard of review, critics maintain that the state can accomplish indirectly through public forum regulation what it cannot achieve through direct content control. An ordinance prohibiting residential picketing altogether, which the Court upheld in Frisby v. Schultz (1988), can be viewed as a form of prior restraint. As the Court observed in United States v. New York Times Co. (1971), “any system of prior restraint carries a heavy burden of justification against its constitutional validity.” Diminished standards for reviewing time, place, and manner regulation, so long as government can articulate a credible rationale that is content-neutral, create a potential bypass to this central First Amendment principle.


Justice WHITE delivered the opinion of the Court.

. . . In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. As we have stated on several occasions, “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District’s interschool mail system is not a traditional public forum: “We do not hold that a school’s internal mail system is a public forum in the sense that a school board may not close it to all but official business if it chooses.” On this point the parties agree. Nor do the parties dispute that, as the District Court observed, the “normal and intended function [of the school mail facilities] is to facilitate internal communication of school related matters to teachers.” The internal mail system, at least by policy, is not held open to the general public. It is instead PLEA’s position that the school mail facilities have become a “limited public forum” from which it may not be excluded because of the periodic use of the system by private non-school connected groups, and PLEA’s own unrestricted access to the system prior to PEA’s certification as exclusive representative.

Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. As the case comes before us, there is no indication in the record that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured from the individual building principal. There is no court finding or evidence in the record which demonstrates that this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. . . .

Moreover, even if we assume that by granting access to the Cub Scouts, YMCAs, and parochial schools, the school district has created a “limited” public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys’ club and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment. . . .

Justice BRENNAN, with whom Justice MARSHALL, Justice POWELL, and Justice STEVENS join, dissenting.

The Court today holds that an incumbent teachers’ union may negotiate a collective bargaining agreement with a school board that grants the incumbent access to teachers’ mailboxes and to the interschool mail system and denies such access to a rival union. Because the exclusive access provision in the collective bargaining agreement amounts to viewpoint discrimination that infringes the respondents’ First Amendment rights and fails to advance any substantial state interest, I dissent.

The Court properly acknowledges that teachers have protected First Amendment rights within the school context. In particular, we have held that teachers may not be “compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work. . . .” We also have recognized in the school context the First Amendment right of “individuals to associate to further their personal beliefs,” and have acknowledged the First Amendment rights of dissident teachers in matters involving labor relations. Against this background it is clear that the exclusive access policy in this case implicated the respondents’ First Amendment rights by restricting their freedom of expression on issues important to the operation of the school system. As the Court of Appeals suggested, this speech is “if not at the very apex of any hierarchy of protected speech, at least not far below it.”

From this point of departure the Court veers sharply off course. Based on a finding that the interschool mail system is not a “public forum,” the Court states that the respondents have no right of access to the system, and that the school board is free “to make distinctions in access on the basis of subject matter and speaker identity,” if the distinctions are “reasonable in light of the purpose which the forum at issue serves.” According to the Court, the petitioner’s status as the exclusive bargaining representative provides a reasonable basis for the exclusive access policy.

The Court fundamentally misperceives the essence of the respondents’ claims and misunderstands the thrust of the Court of Appeals’ well-reasoned opinion. This case does not involve an “absolute access” claim. It involves an “equal access” claim. As such it does not turn on whether the internal school mail system is a “public forum.” In focusing on the public forum issue, the Court disregards the First Amendment’s central proscription against censorship, in the form of viewpoint discrimination, in any forum, public or nonpublic. . . .

Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is involved or not. This prohibition is implicit in the Mosley line of cases, in Tinker v. Des Moines Independent Community School District, and in those cases in which we have approved content-based restrictions on access to government property that is not a public forum. We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum. In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values. Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of “free speech.”

Against this background, it is clear that the Court’s approach to this case is flawed. By focusing on whether the interschool mail system is a public forum, the Court disregards the independent First Amendment protection afforded by the prohibition against viewpoint discrimination. This case does not involve a claim of an absolute right of access to the forum to discuss any subject whatever. If it did, public forum analysis might be relevant. This case involves a claim of equal access to discuss a subject that the board has approved for discussion in the forum. In essence, the respondents are not asserting a right of access at all; they are asserting a right to be free from discrimination. The critical inquiry, therefore, is whether the board’s grant of exclusive access to the petitioner amounts to prohibited viewpoint discrimination. . . .


Kalven, Harry, Jr. “The Concept of the Public Forum.” Supreme Court Review 1 (1965).

Post, Robert. “Between Governance and Management: The History and Theory of the Public Forum.” UCLA Law Review 34 (1987): 1713.

Rosenberger v. University of Virginia

Citation: 515 U.S. 819.

Issue: Whether a state university’s exclusion of a campus religious publication, from a program that funded student organization publications, denied access to a public forum and thus abridged freedom of speech.

Year of Decision: 1995.

Outcome: The selective exclusion of a student religious publication from the general funding program denied access to a public forum and abridged freedom of speech.

Author of Opinion: Justice Anthony Kennedy.

Vote: 5-4.

The First Amendment comprises a set of freedoms that often are bundled together in the same breath. The guarantees of freedom of speech and of the press often merge into the concept of expressive freedom. Religious freedom represents the convergence of the establishment clause and free exercise clause. Although these provisions typically are viewed as mutually enhancing, they sometimes are in conflict with each other. The establishment clause and free exercise clause point in different directions, for instance, when issues such as state aid to parochial schools or public prayer must be reviewed. Prayer or religious displays in public settings may be viewed as official support for religion in derogation of the establishment clause. Exponents and sometimes the Court, however, maintain that these activities should be permitted to accommodate the free exercise of religion.

The establishment clause and free exercise clause are not the only tension in the First Amendment. Conflict also arises between the establishment clause and the freedom of speech clause. The Court initially confronted this clash of constitutional interests in Widmar v. Vincent (1981) when it reviewed a state university policy that denied campus facilities access to student religious organizations. Insofar as the university had opened its facilities to some student organizations, the Court determined a designated public forum had been created. Because exclusion of religious groups was driven by content concerns, rather than considerations of time, place, or manner, the Court strictly scrutinized the policy. Although acknowledging that compliance with the establishment clause would constitute a compelling interest, under appropriate circumstances, it determined that restrictive access was not necessary in this instance. Rather, the Court determined that an equal access policy would not have a secular purpose, would not have the primary effect of promoting religion, and would not excessively entangle government and religion. Consistent with modern understanding of the establishment clause, therefore, the Court concluded that the university could accommodate the freedom of speech clause without crossing the establishment clause.

The Widmar decision became the basis for invalidating restrictions on church access to school facilities that were open to other groups, Lamb’s Chapel v. Center Moriches Union Free School District (1993), and allowing the Ku Klux Klan to erect religious symbols on a statehouse plaza, Capitol Square Review Board v. Pinette (1995). These cases, arising in designated public forums and traditional public forums, respectively, reaffirmed the principle that equal access to a public forum for speech purposes does not abridge the establishment clause. These decisions were unsatisfactory to critics, such as Justice Ruth Bader Ginsburg, who argued that official disclaimers were necessary to avoid any public perception that government was endorsing religion.

Despite these concerns, the balance between freedom of speech and the establishment clause moved even more decisively toward the accommodation of religious expression. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court reviewed a university program for funding student publications. Although providing financial support for “student news, information, opinion, entertainment and academic communications media groups,” the program specifically excluded religious publications. This exclusion was based upon the university’s concern that funding religious messages would violate the establishment clause.

In an opinion authored by Justice Anthony Kennedy, the Court held that the establishment clause constituted no barrier to public funding of religious publications. From its perspective, the object of university funding was “to open a forum for speech and to support various student enterprises . . . in recognition of the diversity and creativity of student life.” The Court thus characterized the funding program as a designated public forum. Consistent with public forum doctrine, and because the denial of funding was content-based, the university was obligated to demonstrate that exclusion of student religious groups was supported by a compelling interest and represented a narrowly tailored means of accounting for it. Noting as it did in Widmar that compliance with the establishment clause may represent a compelling interest, the Court nonetheless concluded that a restrictive access policy was not necessary to meet this need. As the Court saw it, “[a]ny benefit to religion is incidental to the government’s provision of secular services for secular purposes on a non-religious basis.” In other words, it was not necessary to deny funding on the basis of religious views to obey the establishment clause.

For Justice Sandra Day O’Connor, who authored a concurring opinion, the key consideration was whether university funding of the religious publication would constitute an endorsement of religion. Insofar as it received the same assistance provided to other publications, Justice O’Connor was satisfied that its funding would not represent an endorsement of the magazine’s religious perspective. Critical to her opinion were requirements that student organizations be independent of the university and provide disclaimers of any association with the university and its responsibility for content. Given the university’s objective of a free and diverse market of ideas, and consequent improbability that anyone would perceive its endorsement of a religious message, Justice O’Connor saw exclusion on the grounds of religious viewpoint as a free speech violation.

Justice David Souter, in a dissenting opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, found a clear-cut establishment clause violation. His reading of the majority opinion was that the Court “for the first time, approves direct funding of core religious activities by an arm of the state.” From the dissenters’ viewpoint, the university’s policy against funding religious publications was not only justified but compelled by the establishment clause. Further strengthening the university’s position, at least in the dissenters’ eyes, was the publication’s content, which did not merely discuss religious doctrine but espoused a particular religious view. The use of public money to subsidize religious messages, as Justice Souter saw it, “strikes at what we have repeatedly held to be the heart of the prohibition on establishment.”

The Rosenberger decision represents a significant expansion of free speech doctrine, insofar as it emphasizes the importance of religious speech and extends the concept of a public forum into a somewhat abstract realm. What the Court characterizes as equal access to funding, however, may be viewed less as a public forum issue than as an economic benefit. If so, the decision is at odds with a long line of cases supporting the proposition that the state cannot abridge basic freedom but is not constitutionally obligated to subsidize them. The trimming of the establishment clause is the inevitable result of a choice between constitutional provisions perceived to be in conflict with each other. Whether the case presented an either-or proposition was debated before and has been debated since the Court’s ruling. By making it a choice between constitutional principles, the Court in one decision achieved the dual result of enhancing freedom of speech and subtracting from antiestablishment interests.


Justice KENNEDY delivered the opinion of the Court.

. . . It does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups, including groups that use meeting rooms for sectarian activities, accompanied by some devotional exercises. This is so even where the upkeep, maintenance, and repair of the facilities attributed to those uses are paid from a student activities fund to which students are required to contribute. The government usually acts by spending money. Even the provision of a meeting room, as in Mergens and Widmar, involved governmental expenditure, if only in the form of electricity and heating or cooling costs. The error made by the Court of Appeals, as well as by the dissent, lies in focusing on the money that is undoubtedly expended by the government, rather than on the nature of the benefit received by the recipient. If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar, Mergens, and Lamb’s Chapel would have to be overruled. Given our holdings in these cases, it follows that a public university may maintain its own computer facility and give student groups access to that facility, including the use of the printers, on a religion neutral, say first-come-first-served, basis. If a religious student organization obtained access on that religion-neutral basis and used a computer to compose or a printer or copy machine to print speech with a religious content or viewpoint, the State’s action in providing the group with access would no more violate the Establishment Clause than would giving those groups access to an assembly hall. There is no difference in logic or principle, and no difference of constitutional significance, between a school using its funds to operate a facility to which students have access, and a school paying a third-party contractor to operate the facility on its behalf. The latter occurs here. The University provides printing services to a broad spectrum of student newspapers qualified as CIO’s by reason of their officers and membership. Any benefit to religion is incidental to the government’s provision of secular services for secular purposes on a religion-neutral basis. Printing is a routine, secular, and recurring attribute of student life.

By paying outside printers, the University in fact attains a further degree of separation from the student publication, for it avoids the duties of supervision, escapes the costs of upkeep, repair, and replacement attributable to student use, and has a clear record of costs. As a result, and as in Widmar, the University can charge the SAF, and not the taxpayers as a whole, for the discrete activity in question. It would be formalistic for us to say that the University must forfeit these advantages and provide the services itself in order to comply with the Establishment Clause. It is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse. That is not a danger here, based on the considerations we have advanced and for the additional reason that the student publication is not a religious institution, at least in the usual sense of that term as used in our case law, and it is not a religious organization as used in the University’s own regulations. It is instead a publication involved in a pure forum for the expression of ideas, ideas that would be both incomplete and chilled were the Constitution to be interpreted to require that state officials and courts scan the publication to ferret out views that principally manifest a belief in a divine being.

Were the dissent’s view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question—speech otherwise protected by the Constitution—contain too great a religious content. The dissent, in fact, anticipates such censorship as “crucial” in distinguishing between “works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve.” That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause’s dictates than would governmental provision of secular printing services on a religion-blind basis.

“[T]he dissent fails to establish that the distinction [between ‘religious’ speech and speech ‘about’ religion] has intelligible content. There is no indication when ‘singing hymns, reading scripture, and teaching biblical principles’ cease to be ‘singing, teaching, and reading’—all apparently forms of ‘speech,’ despite their religious subject matter—and become unprotected ‘worship.’ . . .

“[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university—and ultimately the courts—to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases.

To obey the Establishment Clause, it was not necessary for the University to deny eligibility to student publications because of their viewpoint. The neutrality commanded of the State by the separate Clauses of the First Amendment was compromised by the University’s course of action. The viewpoint discrimination inherent in the University’s regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause. . . .

Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.

The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment’s Establishment and Speech Clauses, and by viewing the very funds in question as beyond the reach of the Establishment Clause’s funding restrictions as such. Because there is no warrant for distinguishing among public funding sources for purposes of applying the First Amendment’s prohibition of religious establishment, I would hold that the University’s refusal to support petitioners’ religious activities is compelled by the Establishment Clause. I would therefore affirm.

The central question in this case is whether a grant from the Student Activities Fund to pay Wide Awake’s printing expenses would violate the Establishment Clause. Although the Court does not dwell on the details of Wide Awake’s message, it recognizes something sufficiently religious in the publication to demand Establishment Clause scrutiny. Although the Court places great stress on the eligibility of secular as well as religious activities for grants from the Student Activities Fund, it recognizes that such evenhanded availability is not by itself enough to satisfy constitutional requirements for any aid scheme that results in a benefit to religion. Something more is necessary to justify any religious aid. Some Members of the Court, at least, may think the funding permissible on a view that it is indirect, since the money goes to Wide Awake’s printer, not through Wide Awake’s own checking account. The Court’s principal reliance, however, is on an argument that providing religion with economically valuable services is permissible on the theory that services are economically indistinguishable from religious access to governmental speech forums, which sometimes is permissible. But this reasoning would commit the Court to approving direct religious aid beyond anything justifiable for the sake of access to speaking forums. The Court implicitly recognizes this in its further attempt to circumvent the clear bar to direct governmental aid to religion. Different Members of the Court seek to avoid this bar in different ways. The opinion of the Court makes the novel assumption that only direct aid financed with tax revenue is barred, and draws the erroneous conclusion that the involuntary Student Activities Fee is not a tax. I do not read Justice O’CONNOR’s opinion as sharing that assumption; she places this Student Activities Fund in a category of student funding enterprises from which religious activities in public universities may benefit, so long as there is no consequent endorsement. . . .

Since I cannot see the future I cannot tell whether today’s decision portends much more than making a shambles out of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger’s warning in Lemon: “in constitutional adjudication some steps, which when taken were thought to approach ‘the verge,’ have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a ‘downhill thrust’ easily set in motion but difficult to retard or stop.”

I respectfully dissent.


Redish, Martin, and Daryl Kessler. “Government Subsidies and Free Expression.” Minnesota Law Review 80 (1996): 543.

Werhan, Keith. “The Liberalization of Freedom of Speech on a Conservative Court.” Iowa Law Review 80 (1994): 51.


Regulation may have an impact upon expression that is direct or indirect. When government controls expression because of its content, and the speech is in a constitutionally protected category, standards of review are rigorous. A lesser standard of review operates, however, when government’s regulatory interest is unrelated to expression itself. Rules governing access and use of public forums, when properly devised, represent the most established model of content-neutral regulation. Laws targeting the secondary effects of a particular communication mode are a more recently recognized form of content-neutral regulation. In City of Renton v. Playtime Theatres, Inc., the Court reviewed a zoning ordinance restricting the location of adult entertainment businesses. Secondary effects doctrine was the basis for upholding this law.

City of Renton v. Playtime Theatres, Inc.

Citation: 475 U.S. 41.

Issue: Whether a city may prohibit adult movie theatres from locating in residential neighborhoods.

Year: 1986.

Outcome: Because of the “secondary effects” of adult movie theatres, specifically their connection with crime and deteriorating property values, their location may be restricted.

Author of Opinion: Justice William Rehnquist.

Vote: 7-2.

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